Tuesday, September 02, 2014

Data use regulation

Get ready to see that term. It's the new pragmatic approach to privacy protections coming out of the tech industry and carried forth by our reasonable technocratic wise men.   
Craig Mundie is a longtime Microsoft technologist and member of the President’s Council of Advisors on Science and Technology, which recently released a set of new recommendations for the use of big data, wrote. In July, Mundie wrote in Foreign Affairs that use regulations are a “pragmatic” solution to the “data exhaust” generated by new products and services. But such a label shifts critical focus away from technology companies that define and control the space we have for “pragmatic” decisions. Technology companies have designed products to produce a data exhaust, often deliberately. Unreadable privacy notices and the inconvenient choice mechanisms were created by the very companies that want to encourage data sharing. Technologists designed systems to make privacy impossible, and now they say it is “pragmatic” to accept their legal proposal to solve the privacy problem.
The idea is, instead of restricting the kinds of information companies can collect on you (because that would be against freedom), we wait to see how they're using it first and then restrict what we don't like (provided we even know about it) a little bit at a time.  Sound good?

Ok but also remember that restricting those uses is kind of a problem too because you run into that whole "corporations are people" with free speech rights thing. 
Use regulations offer no real protection, because businesses themselves get to choose what uses are appropriate. Worse yet, companies misusing data will have a huge legal loophole—the First Amendment. Companies have long argued that privacy rules are a form of censorship, and thus limits on use will be an abridgement of their free expression rights. The only workable situation for this problem is to require companies to contractually waive their First Amendment rights with respect to personal data.
Well Ok. But what are the odds that companies would sign onto such a waiver? Not good, I'm guessing.  Maybe we should put it in the terms of service.  Everybody just clicks through that stuff anyway. 

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